How the Independent Act Doctrine Could Help Your Criminal Case

February 1, 2022 Don Pumphrey, Jr. Criminal Defense Social Share

Co-defendants can complicate already stressful criminal cases. In a case involving co-defendant conspiracy, the crime charged to each defendant will depend on the criminal intent of the defendants, and whether the actions taken by them fell into the realm of their originally thought-out plan. To learn more about co-defendant criminal cases, click here.

What is the Independent Act Doctrine?

Under Florida Law, the independent act doctrine can be asserted as a defense in a criminal case involving co-defendants. Specifically, if a defendant and their co-defendant are in a common plan to commit a criminal act and the co-defendant goes off-plan and commits a criminal act not planned, and that act could not have been foreseeable or anticipated by the defendant, that act is considered an independent act attributable to only the co-defendant. The independent act doctrine essentially states that a defendant charged with conspiracy can avoid conviction for a crime that was not reasonably anticipated under the original plan and was committed solely by the co-defendant under their own intention.

The Required Elements

An independent act is one which a person who is not you attempts to commit or actually commits and:

• You did not intend for the act to occur,
• You did not participate in the act, and
• The act was not reasonably foreseeable or could not be reasonably anticipated as a consequence of the common plan intended by you.

Complications with the Independent Act Doctrine

The independent act doctrine does have its limitations. It is only applicable if you, as a co-defendant, do not participate at all in the outside act not intended by the original plan, and the outside act is “foreign to … the common design of the original collaboration.” Due to the strict nature of the doctrine, this defense can only be used in very specific conspiracy cases. Additionally, if you were “a willing participant in the underlying felony and the [harm] resulted from forces which [you and your co-defendant] set in motion, no independent act instruction is appropriate.” 

Case Examples

Recently, the Florida Second District Court of Appeal decided a case that provides an excellent example of the limitations and applications of the independent act doctrine: Gary v. State. In that case, Gary appealed his conviction and sentence for third-degree murder with a firearm resulting in 15 years in prison. He argued that the trial court erred by denying his request for an independent act jury instruction, which reads:

If you find that the crime alleged was committed, an issue in this case is whether the crime of (crime alleged) was an independent act of a person other than the

defendant. An independent act occurs when a person other than the defendant commits or attempts to commit a crime

1. which the defendant did not intend to occur, and
2. in which the defendant did not participate, and
3. which was outside of and not a reasonably foreseeable consequence of the common design or unlawful act contemplated by the defendant.

If you find the defendant was not present when the crime of (crime alleged) occurred, that, in and of itself, does not establish that the (crime alleged) was an

independent act of another.  If you find that the (crime alleged) was an independent act of [another] [(name of individual)], then you should find (defendant) not guilty of the crime of (crime alleged).

The court agreed with Gary and reserved his conviction, remanding for a new trial. Gary was charged with the murder of Ricardo Guzman when he arranged for his co-felon to buy marijuana from him, resulting in Mr. Guzman being shot and killed. Gary said he only wanted to buy the marijuana and had no idea that his co-felon intended to rob Mr. Guzman, which resulted in his murder. The Second District Court of Appeal found that the independent act doctrine’s applicability hinges on the evidence at trial, specifically, if any evidence is “introduced at trial which supports the theory of defense, a defendant is entitled to have the jury instructed on the law applicable to his theory of defense when he so requests.” The court concluded that there was evidence present from which a jury could find that the acts of Gary’s co-felon were independent of the original plan to buy marijuana from Mr. Guzman. Since “’it is for the jury, not the court, to determine what weight to give the defendants evidence’ supporting an independent act defense,” Gary was entitled to the instruction.

Tallahassee Criminal Defense Attorney for Conspiracy

If you or a loved one has been charged with a conspiracy crime, contact an experienced Tallahassee criminal defense attorney as soon as possible to explore your options. Don Pumphrey and the members of the legal team at Pumphrey Law Firm have decades of experience defending Floridians against state criminal charges and will ensure every defense, like the independent act doctrine, will be explored in your favor. Contact Pumphrey Law Firm today at (850) 681-7777 or send an online message to discuss your case during an open and free consultation with an attorney in our legal team.

Written by Gabi D’Esposito 

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